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The District Attorney vs. the Police

The narrator of the NBC crime drama Law & Order has it right every Wednesday evening when he says, "In the criminal justice system the people are represented by two separate yet equally important groups-the police who investigate crime and the district attorneys who prosecute the offenders." Now these two separate yet equally important groups are virtually at war with one another over the Central Park Jogger case.

When in January, 2002, imprisoned murderer and serial rapist Matias Reyes confessed to a corrections officer that he and he alone had assaulted and raped the jogger on April 19, 1989, he launched the two agencies on separate missions to find out what really happened that night. Yet each agency's search for the truth has been hampered by its parallel search for self-vindication.

And while the two agencies may theoretically be equally important in the justice system, the D.A.'s office can outmaneuver the police department when it chooses, relegating detectives to secondary importance or even excluding them altogether. The Manhattan D.A.'s office has done this repeatedly since it reopened the jogger investigation some time in the winter of 2002. (Like so many important details, the precise date has not been given publicly.)

The district attorney's office has maintained command of both the investigation and the distribution of information to the media, with the result that the New York Times in particular has often published early, sympathetic interpretations of the office's austerely phrased, seemingly neutral legal documents.

The district attorney's 58-page filing in state Supreme Court on Dec. 5, 2002-known as the Ryan Affirmation after Assistant District Attorney Nancy Ryan who signed it-recommended that the court vacate all convictions of the five defendants. The specific legal issue in the defendants' motions was: Does the newly discovered evidence create a probability that, if the new evidence been received at trial, it would have resulted in a verdict more favorable to the defendants on one or more charges? The yes conclusion was nearly incontestable. But almost everything else about the case remains in dispute.

The January 27 release of a report by a three-man panel appointed by Police Commissioner Raymond Kelly is a not completely successful attempt by the Police Department to put forward a different analysis.

THE POLICE PANEL'S SCENARIO

The panel attacks Reyes's claim that he acted alone, pointing out that many commentators have assumed only two possibilities-that either Reyes acted alone or that the defendants did. Instead, it says, "Our examination of the facts leads us to suggest that there is an alternative theory of the attack upon the jogger, that both the defendants and Reyes assaulted her, perhaps successively."

The panel suggests that the defendants might have "abandoned the jogger after mauling her in the hit-and-run style typical of their rampage." Reyes might have followed them, attacking her brutally. The "vicious outrages inflicted upon the jogger" would have been more characteristic of Reyes than of the defendants, says the panel. Indeed, the "defendants' lesser role would in fact be consistent with their confessions."

The untitled report is signed at the end by the two outside lawyers-Michael Armstrong and Jules Martin-and by the deputy police commissioner for legal matters, Stephen Hammerman. Kelly's hope in appointing the panel, according to the New York Times, was that the presence of distinguished outsiders would ensure a thorough investigation not hobbled by institutional self-protection. Armstrong, a former Queens district attorney and federal prosecutor, is a partner in the firm of Kronish Lieb Weiner & Hellman. In the early 1970s, he was chief counsel to the Knapp Commission, whose investigation of police corruption had been instigated by Frank Serpico's well-known charges. Martin, a police officer for 29 years who retired in 1997 as chief of the department's Housing Bureau, is now an assistant vice president at New York University.

The panel says the district attorney's office excluded the police from its investigation last year, refusing to give detectives access to interviews with Reyes-even after the fact-and refusing to follow up on leads the police regarded as promising. Even though the D.A.'s office spent hours interviewing Reyes, police were allowed only to view one videotaped interview and to listen to one brief audio recording of another interview. And since no hearing was held on the defendants' motion to vacate, no cross-examination of Reyes under oath was ever conducted in public. Nor were the interviews ever released. The panel also complains that inmates who claimed to have been told of the assaults by Reyes were never interviewed by anyone.

Even if the district attorney had legitimate reasons for excluding the police from interviews, what possible reason could the office have for not taping all communication with Reyes and making those tapes available to the NYPD? How could the search for truth be furthered by withholding the interviews? And why not interview the inmates who claimed Reyes had given them accounts of the assault? The Ryan Affirmation seeks to give Reyes substantial credence, saying, "Information Reyes has provided about himself and his history has consistently proven to be reliable and accurate, both about matters related to the case and matters with no direct connection to it. Reyes has also been candid, even with respect to aspects of his history that might cast doubt on his credibility."

REYES'S CLAIM OF ACTING ALONE

Media reports have asserted that forensic evidence confirmed Reyes's claim of acting alone, but this is not true. Much of the forensic evidence was contaminated in the intervening years-sloppy handling of evidence being yet another local scandal-and the intact evidence was inconclusive. Meanwhile, members of the jogger's medical team had come forward to say that her wounds were inconsistent with a single assailant. The Ryan Affirmation ignored their testimony.

The only evidence that Reyes acted alone is his own testimony, which makes his credibility important. (He was not given a polygraph examination. "Perhaps," says the panel, "he is thought to be too unstable to allow for a meaningful test.") All professional assessments of him over the years-including by his own attorney-have doubted his honesty and stability.

Nonetheless, the district accepts Reyes's startlingly unlikely assertion that he was moved to come forward because of his "positive experiences" in prison, where he was treated "decently despite the nature of his criminal history." He also said he felt guilty on seeing the jogger defendant Kharey Wise, a fellow inmate in the Auburn Correctional Facility, knowing that he had committed the crime for which Wise was imprisoned.

The panel offers a more convincing motivation than altruism for Reyes's confession: He received a favorable prison assignment. Saying that he was afraid of Wise, Reyes demanded and received a transfer back to his previous facility, the Clinton Assessment Programs Prepared Unit, from which he had been expelled in 2001 for fighting. The unit mainly houses notorious or famous inmates who might be targets for inmate abuse. It has only 260 beds and one of the lowest inmate/correction officer ratios in the system. Reyes had spent nine of his thirteen years in prison at unit and knew well its relative pleasantness and safety. Now he is back there. Said the panel, "By claiming that he had committed the crime for which others were convicted and served time, he put himself in the position of needing protection from the defendants or their friends in prison."

D.A.'S OFFICE DENIES POLICE PANEL'S THEORY

In hearings before the City Council on January 29, Manhattan Chief Assistant District Attorney James Kindler denied there was any evidence to support the panel's alternative theory that the five original defendants participated in the attack on the jogger. Said Kindler: "The theory that Reyes may have come along later, it is a theory, there is no evidence to support it."

Kindler denied that the district attorney had withheld information from the police or other officials. But even as he was speaking his former colleague, Linda Fairstein, who had headed the Sex Crimes Unit during the prosecution of the case, submitted a written statement saying the D.A.'s office had refused to interview her. Outspoken in her anger, Fairstein said recently to NY1: "The untested word of a psychopathic murderer who raped four other women, killed one in the presence of her . . . children and raped his mother--he now says he did this alone and that's untested in a court of law?"

The debate about whether Reyes did it alone or not continued after the City Council hearings with yet another piece by the New York Times presenting newly released inside information-what it calls "a little-noted documentary record" of the first moments of the attack. A crime scene detective had measured and photographed the drag marks left by the jogger's body--marks consistent with a single attacker, according to unnamed prosecutors.

POLICE PANEL REVEALS POLICE INCOMPETENCE

The Police Department panel seems oddly oblivious to the level of police incompetence exposed by its recommendations. It recommends improved accountability and control of evidence, for example, noting that the Manhattan Chief of Detectives had taken home the only copies of Polaroid pictures of the jogger, thereby forcing the prosecutor to question the suspects without them. Not very reassuringly the panel says this does not "appear to be a systemic problem and is unlikely to recur."

The panel recommends better forensic management, noting that the pants of one defendant were put on the precinct floor while being photographed. The Ryan Affirmation essentially says that most of the forensic evidence was lost or contaminated over the years. The police panel says this is unlikely to happen today because of NYPD reforms in 1995.

Most shocking, however, are the panel's casual comments about the failure of the police and prosecutors to follow up on a vicious rape two days before the jogger rape. "There has been some criticism directed at the department," it notes, "for the failure to connect the April 17, 1989 rape to the April 19, 1989 attack on the jogger. Reyes was identified as a possible suspect in the April 17, 1989 rape, and was later arrested, in August, 1989, for another rape and murder to which he ultimately pleaded guilty. If, at the time, it had occurred to either the police or the prosecutors that the April 19 rape might have been committed by the same individual that had raped someone on April 17, it would have been simple to compare the DNA recovered from the jogger against that of the defendant they now had in custody. But, the police and the District Attorney's office had a set of confessions and were satisfied that the defendants perpetrated the attack on the jogger. They had no cause to search for links to other cases until DNA tests in November, 1989, indicated that the semen from the jogger did not match any of the defendants. Today's case review methods would substantially increase the probability of identifying cases with seemingly very few similarities."

In other words, because the police and the D.A. "were satisfied" with the confessions from the defendants they had no cause to search for links to any other cases. What is horribly clear today is that neither the police nor the district attorney was paying serious attention to any other cases, even as brutal rapes in the Central Park area continued.

Without saying a critical word about the police or the D.A.'s office-both equally culpable in these investigations-the Ryan Affirmation exposes a pattern of bureaucratic indifference by listing some of Reyes's known rapes followed by the notation "marked closed." These cases were not marked closed because they were solved-they were marked closed because the investigators decided not to pursue them in the summer of 1989 even as Reyes roamed the streets raping and murdering. (And these were not the only rapes disregarded by investigators. The woman who was raped and thrown down an elevator shaft in Harlem the same week as the Central Park assault was shamefully ignored.)

On June 11, 1989, Reyes raped, stabbed and tried to drown a 24-year-old woman in her apartment on 116th Street. On June 14 he raped and stabbed to death a pregnant woman in her apartment at 97th and Madison while her three children were locked in the next room. On July 19 he raped and robbed a 20-year-old woman in her apartment on 95th Street and Madison, also cutting her eyes. On July 27, 1989, he robbed and tried to rape a woman in the hallway of a building on 95th and Lexington but was stopped by neighbors. On August 5 he raped and robbed a 24-year-old woman in her apartment on 91st Street-and was captured by her neighbors. That is how his crime spree ended-by New Yorkers capturing him, not by police work or district attorney investigation.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

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